AH v West London MHT and Secretary of State for Justice [Upper Tribunal (AAC)]
| Jurisdiction | UK Non-devolved |
| Judgment Date | 29 July 2010 |
| Date | 29 July 2010 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
[2010] UKUT 264 (AAC)
Upper Tribunal (AAC), M/84/2010
Carnwath LJ SPT, UTJ Levenson, UTJ Cooper
A Weereratne (instructed by Duncan Lewis and Co) for AH; V Sachdeva (instructed by Capsticks) for the Trust; the Secretary of State did not appear and was not represented.
The proper approach to a request for a public hearing in a mental health case before a Tribunal; whether a decision to refuse a hearing was correct.
In 1986, AH was ordered to be detained under ss37 and 41 Mental Health Act 1983, having been convicted of attempted wounding; since then he had been detained in high secure or medium secure hospital conditions, and was currently in high secure conditions at Broadmoor Hospital. He was diagnosed as having psychopathic disorder; until 2008, he had been diagnosed as having mental illness and psychopathic disorder. His detention had been upheld by Tribunals on various occasions. In April 2009, he made a further application to a Tribunal and sought a public hearing under r38(1) Tribunal Procedure Rules 2008, which provides that a hearing must be in private unless the interests of justice support a public hearing. His reasons centred on his lack of progress, his perceptions of the failings of the care system, including in relation to his diagnosis, his wish for the public to know about conditions at Broadmoor and a desire to redress the negative publicity that patients usually receive. The hospital objected, noting that publicity might have an adverse impact on AH's mental health and a public hearing might make AH and the proceedings as a whole more difficult to manage, and suggesting that he might be misusing the tribunal to air wider grievances in an inappropriate forum. The hospital also argued that a public hearing would be disproportionate in light of the expert evidence making it clear that AH was not ready for discharge and that the administrative difficulties and costs significantly outweighed any benefits.
The First-tier Tribunal rejected the application, finding that AH's primary intention was to air his grievances about the system, his evidence would not be sufficiently relevant to the question in front of the Tribunal and he would be more difficult to control, there was unlikely to be much public interest and it was unlikely that the public would be informed accurately, the cost and problems of managing a public hearing were disproportionate to any benefit, and AH's health, behaviour and progress were likely to be affected adversely by the hearing and by the lack of publicity or adverse publicity. In relation to the effect on AH's health, there had been conflicting exert evidence. On appeal to the Upper Tribunal, the issues arising were the jurisdiction of the Upper Tribunal to consider the appeal, the proper meaning of r38 of the 2008 Rules in light of Art 6 ECHR, and whether the Tribunal decision adequately reflected relevant factors into account.
1. Order: The Upper Tribunal in exercise of its powers under s12(2)(a) Tribunals, Courts and Enforcement Act 2007 sets aside the decision of the First-tier Tribunal dated 15 October 2009 not to grant AH a public hearing, and directs that the question be considered and determined by the Upper Tribunal following a further hearing (at which we invite the Department of Health to appear) for the purpose of considering further evidence as to:
- the practicalities and potential cost of providing a public hearing (including by use of video facilities);
- how often public hearings have been applied for in the last 5 years, the number of occasions on which they have in practice been held, and how they have been managed?;
- (so far as readily available) practices elsewhere in the UK, in Europe, and in other common law countries.
Reasons for Decision:
Introduction
2. The applicant AH is detained at Broadmoor Hospital pursuant to ss37 and 41 of the Mental Health Act 1983. Broadmoor Hospital is a high security hospital in Berkshire, one of only 3 such institutions in the country.
3. On 9 April 2009, AH applied to the First-tier Tribunal (mental health) ("the tribunal") for his discharge from section. At the same time he requested that the hearing should be held in public, pursuant to r38(1) of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 ("the Rules").
4. Rule 38(1) states as follows:
Public and private hearings
38(1) All hearings must be held in private unless the Tribunal considers that it is in the interests of justice for the hearing to be held in public.
5. On 15 October 2009, the tribunal heard AH's application for a public hearing as a preliminary matter. The tribunal determined that the substantive hearing of AH's application for discharge should be held in private, before a new panel. On 24 November 2009 Judge Wright, Principal Judge of the First-tier Tribunal (mental health), reviewed this decision, pursuant to r47(1) of the Rules, and a) concluded that the decision contained no error of law; b) refused permission for AH to appeal the decision to the Upper Tribunal.
6. On 25 February 2010 Judge Levenson, Judge of the Upper Tribunal, gave permission to AH to appeal to the Upper Tribunal against the decision of the tribunal of 15 October on the grounds that the case
raises issues that the Upper Tribunal should address as follows:
- Whether the Upper Tribunal has jurisdiction to consider this as an appeal?
- How r38 should be understood in the light of the provisions of Art 6 of the European Convention on Human Rights?
- Whether the First-tier Tribunal gave adequate consideration to the matters to be taken into account, for the purposes of Art 6(1)?
7. On 21 March 2010 Judge Rowland, Judge of the Upper Tribunal, issued a further Direction that the appeal involves an important point of principle and practice and should be decided by 3 judges.
The Facts
8. The applicant AH, aged 51, has a very long history of engagement with mental health services. He has been continuously detained under the Mental Health Act 1983 Act ('the Act') for over 23 years.
9. Following his conviction in September 1986 on 2 counts of attempted wounding he was made subject to the provisions of ss37 and 41 of the Act and in October 1986 was admitted to Broadmoor Hospital. Thereafter he was detained in Broadmoor Hospital for 6 years, at St Bernard's Regional Secure Unit for about 16 years, and was transferred back to Broadmoor Hospital in January 2008, where he currently resides.
10. AH has a mental disorder classified since September 2008 as a psychopathic disorder. Prior to that date his mental disorder had been classified as mental illness and psychopathic disorder. AH has had a number of tribunal hearings in private over the years of his detention. His principal reasons for seeking a public hearing for his next tribunal are in summary: He has been a detained patient for over 23 years, and is still held in conditions of high security. He is frustrated by his lack of progress and the perceived failings in the system of care as he has experienced them, including the question of his diagnosis. He wishes the public to know what it is like to be a patient at Broadmoor Hospital and to redress the negative publicity that patients usually receive.
11. Broadmoor Hospital opposes AH's wish for a public hearing for a number of reasons. Publicity may have an adverse effect upon his mental health, whatever the outcome of the hearing. A public hearing may render him and therefore the proceedings difficult to manage. AH may be misusing the tribunal as an attempt to air his wider grievances about the hospital inappropriately in a public forum. The experts on both sides agree that there is no prospect of AH being discharged, so it would be a disproportionate exercise to hold a public hearing. Finally, there would be significant administrative difficulty and associated cost in organising a public hearing disproportionate to the benefits.
The Law
Jurisdiction
12. As already noted, one of the issues raised by Judge Levenson when granting permission to appeal was whether the Upper Tribunal has jurisdiction to consider this as an appeal. In the event, it has been common ground that the Upper Tribunal does have jurisdiction. We make some brief comments only, acknowledging that we have not heard argument on the point.
13. We should emphasise that we treat this as an appeal against the decision of the First-tier Tribunal of 15 October 2009, not against the refusal of permission to appeal on 24 November 2009. The latter would be an "excluded decision" under s11 Tribunal Courts and Enforcement Act 2007, and therefore not susceptible to appeal under that section. However, that does not affect the right to appeal, subject to permission, against the original decision.
14. Nor do we see any reason why the interlocutory nature of the decision should be material. It is none the less a "decision" within s11. Indeed the expertise of the Upper Tribunal is particularly well suited to providing guidance on such procedural issues. The Upper Tribunal has accepted jurisdiction in cases involving interlocutory orders in relation to disclosure of evidence (Dorset Healthcare NHS Foundation Trust v MH[2009] UKUT 4 (AAC), [2009] MHLR 102, LM v LBL[2009] UKUT 204 (AAC)), refusal to reinstate a struck out appeal (Synergy Child Services Ltd v OFSTED[2009] UKUT 125 (AAC)), decisions to strike out a case (AW v Essex County Council[2010] UKUT 74 (AAC), KC v LBN[2010] UKUT 96 (AAC)) and a refusal to set aside a decision (Patterson v SSWP[2010] UKUT 103 (AAC)).
15. Accordingly, we see no reason to go behind the agreement between the parties in this case. However, we understand that a 3-judge panel of the Administrative Appeal Chamber (presided over by the Chamber...
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